December 5, 2001
To the Members of the New Jersey Delegation of the United States Senate and the United States House of Representatives
Dear Senators and Representatives:
President George W. Bush signed an Executive Military Order on November 13th,2001,which allows for non-US citizens suspected of involvement in 'international terrorism' to be tried by special military commissions, operating in secret, and with the power to pass death sentences, under drastically reduced evidentiary standards, and without any avenue of appeal to a regularly constituted judicialbody.
The Military Order casts a wide net, covering any foreign national whom thePresident determines has 'engaged in, aided or abetted, or conspired to commit, acts of international terrorism' detrimental to the USA, or 'knowingly harbored' such an individual. The Order flouts the principle that thepowers of the executive should be separate from those of the judiciary: it givesunfettered and unchallengeable discretionary power to Mr. Bush and other membersof the executive branch to decide who will be prosecuted, and to determine the rules of evidence and proof that will apply. After he signed the foregoing executive order mandating the use of military tribunals in purportedly terrorist cases Mr. Bush insisted he alone or his personal designees should be empowered to decide who goes before such a military court, his staff last week informed the news publication Newsweek. The Executive Order gives the government the power to try, sentence, and even execute suspected foreign terrorists in secrecy, under special rules that would deny them all constitutional rights and allow no chance to appeal, and under radically reduced evidentiary standards that permit conviction based upon a preponderance of evidence rather than beyond a reasonable doubt, the standard invariably applied in criminal processes.
In anticipation of an implementing of the foregoing order, the actions taken by Mr. Bush and Attorney General John Ashcroft in secretly detaining untold numbersof individuals have been widely condemned by legal authorities and scholars in the field of international law as a constitutional coup d'etat which may lead to a police state-like security apparatus in which everyone's rights - citizens and non-citizens alike - would be under uninterrupted threat. Since September 11th, we have seen one blow against the Constitution after another. Recently, we've had Mr. Ashcroft saying that he had, unilaterally, instituted monitoring of attorney-client communications without informinganyone, in or out of the government or the judiciary, despite the Fourth Amendment ban on unreasonable searches and seizures without warrant and the Sixth Amendment right to representation by counsel. The criminal investigation into the attacks, the largest in U.S. history, hasnetted about 1,200 detainees. But the Justice Department has failed to build acase against a single prime U.S. suspect in the terrorist attacks.Nine weeks after the September 11th terrorist attacks, federal authoritiesadmitted on November 15th that they had found no evidence indicating that any of the roughly 1,200 people detained in the United States played any role whatsoever in the suicide hijacking plot. Notwithstanding this, numerous legal protections, based on constitutional and international treaties, appear to have been ignored or violated in the caseof the 1,200 detainees. The American public does not know where these individuals are or the conditions under which they are being held. The American public does not know whether these individuals have access to attorneys. We do know one of them died, under highly suspicious circumstances, while incustody. There have been reports that he was tortured to death: here, in the United States, by Americans, most likely acting on orders from other Americans.
This is unacceptable: morally, politically and legally unacceptable.
TheConstitution protects aliens in the United States: clearly aliens here areentitled to the protections of the due process clause of the Fifth Amendment ,as well as to the Article III (Section 2, Clause 3) basic constitutional rightsin criminal cases, including indictment, trial before a federal district judge or jury, and rights relating to venue, amongst others. The foreign detainees are also protected by international law under treaties, including the International Covenant on Civil and Political Rights and the Vienna Convention on Consular Relations (VCCR). The International Covenant on Civil and Political Rights, to which the UnitedStates government is a party, affords basic due process protections to everyonehere in the United States, irrespective of their citizenship. The VCCR of 1963 calls for notification without delay of consular officials when one of their nationals has been arrested or detained in any other manner. Although Egypt, Pakistan, Syria, and Saudi Arabia are party to the VCCR along with the United States, the Justice Department told Agence France Presse that it is using an abbreviated list of nations, the Mandatory Notification Countries,which includes only one Middle Eastern nation, Kuwait. It is now reported that the Justice Department is planning to round up and question some 5,000 persons, mostly from Middle Eastern countries, who entered the U.S. legally within the past two years.
This is also completely unacceptable, for a variety of good reasons.
It isdangerous to Americans' physical safety and integrity, and the safety and security of our country because, in connection with the Executive Order calling for military tribunals to try alleged al Qaeda members,or even former al Qaeda members, in Afghanistan, there is an even more serious problem. The third and fourth Geneva Conventions of 1949 clearly apply to the United States conflict with Afghanistan. These alleged al Qaeda members would be protected either by the third Geneva Convention, if they are fightersincorporated into the army there in Afghanistan, or by the fourth Geneva Convention, if they are deemed to be civilians. Both conventions have very extensive procedural protections on trials that must be adhered to. Although a trial can be held, there are extensive rules and protections and basic requirements of due process of law, set forth in these treaties that must be applied. Failures to apply these treaties would constitute war crimes. The Executive Order calling for secret military tribunals is extremely dangerous because it invites reprisals by the Taliban, amongst others. What it is basically saying to theTaliban government and to the al Qaeda organization is, 'the United States is not going to give you the protections of either the thirdor fourth Geneva Conventions' guarantees on trials. What that means is that theycould engage in reprisals against captured members of the United States Armed Forces. Briefly, it opens up members of our own armed forces to be denied prisoner-of-war status, and treatment legally based on that status. The United States government appears set to expose its military (and civilian, for that matter) personnel to a similar type of treatment, which would be a summary trial, in secret, subject to the death penalty. Furthermore, the existence of the order impairs the ability of our allies in the struggle against terrorism to cooperate fully with United States efforts: detainees held in connection with the September 11th events include 'more than 100 in Europe, more than 100 in the Near East, 30 in Latin America and 20 in Africa'. On 23 November, the government of Spain stated officially that it would refuse to extradite eight alleged Al-Qa'ida members to the USA while there was a risk that they would face the death penalty or be tried by the special military commissions.
The Diocese of New Jersey of the Moorish Orthodox Church in America, its clergy,its lay members and its friends and coworkers condemn in the strongest terms and most unqualified fashion the atrocities perpetrated in New York and Washington this past September, and has called for anyone involved to be brought to justice in accordance with internationally recognized standards. In ignoring such international standards, (which provide that certainfundamental principles must be respected at all times, even in time ofemergency, including the right of appeal, of attorney-client confidentiality andof appropriate evidentiary standards) which the United States has voluntarily chosen to make itself subject to, the Executive Military Order contravenes US obligations under international law, specifically the International Covenant on Civil and Political Rights, ratified by the USA in 1992, the Charter of the United Nations, the Charter of the Organization of American States and the Inter-American Declaration on the Rights and Duties of Man.
The Moorish Orthodox Diocese of New Jersey calls for suspects in US custody tobe given a fair and public trial, before an impartial court, without recourse tothe death penalty. We oppose any person being tried before the special military commissions proposed in the Executive Military Order of November 13th, and will oppose the sending by any other country of anyone to face the death penalty or trial before such tribunals. The Diocese of New Jersey further calls for the Executive Military Order of November 13th to be immediately revoked, on the grounds that it violates international legal obligations of the United States under both customary andtreaty law and that it bypasses fundamental principles of justice, including the right of appeal to a higher court, the right to attorney-client confidentiality, and the right to appropriate evidentiary standards, rights which cannot be lawfully suspended even in time of emergency.
Lastly, the Centre calls for the immediate release of information by UnitedStates authorities of the names and locations of individuals detained, for aguarantee by the United States government of their humane treatment, and for theallowing of access to the foregoing detainees by accredited representatives of the International Committee of the Red Cross. Several days ago, the Attorney General, Mr. Ashcroft, challenged human rights advocates to bring forward evidence demonstrating that detainees' civil rights are beingviolated. That challenge is misdirected (and appears to be intentionally so), as the burden lies with the government to lift the veil of secrecy and demonstrate that it is protecting such rights. While some information may be privileged on security or privacy grounds, the extraordinary lack of data does not appear to be justified or in the public interest.
Without such data, it is impossible forthe American public to assess how far the rights of those detained are being protected (or otherwise); the true extent of any abuses reported; whether or not there has been any practice of incommunicado detention or torture on a systematic or an individual level; and whether or how effectively the authorities are dealing with such concerns.
Your promptest possible response to this communication is respectfully requested.
Sincerely and respectfully yours,
+ SOTEMOHK
Bishop of New Jersey
cc: The Hon. George W. Bush, President
The Hon. Colin Powell, United States Secretary of State
The Hon. Donald Rumsfeld, United States Secretary of Defense
The Hon. John Ashcroft, United States Attorney General